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Court tosses WB David claim against De Beers

By Michelle Graff

January 08, 2014

New York--A federal judge in New York has dismissed W.B. David & Co. Inc.’s lingering claim in its 10-year-old case against De Beers’ rough diamond sales arm, the last outstanding antitrust case against the diamond miner and marketer in the United States.

On Monday, U.S. District Judge Kimba M. Wood ruled that the now-bankrupt diamond company failed to prove that the sightholder system of De Beers’ Diamond Trading Co. (DTC) constituted a monopoly and constrained sightholders’ business practices.

She ordered the case dismissed with prejudice, meaning it cannot be reopened.

De Beers said in an emailed statement that it welcomed Wood’s decision, and noted that the judge also denied a request to file another amended complaint  and ordered the case closed, marking the end of the last antitrust suit against De Beers in the U.S. 

Yann Geron, one of the attorneys representing the Chapter 7 bankruptcy trustee now handling the estate of W.B. David & Co., did not respond to request for comment made late Tuesday.

According to background provided in court documents, New York-based diamond company W.B. David was a De Beers sightholder for more than three decades, from 1969 until it was dropped in 2003.

In 2004, W.B. David filed a $100 million lawsuit against a total of 90 defendants, including De Beers and the DTC. Counts included in the original complaint were racketeering, violation of antitrust laws and unfair competition, among many others.

Over the years, the case was whittled down and, along the way, W.B. David was forced into bankruptcy, leaving its trustee to head the case.

In 2011, the case was thrown out of court entirely but the Second Circuit Court of Appeals in New York later ruled that one claim, the “sight claim” could proceed, court papers show.

The claim alleges that the sight system of the DTC, as well as its predecessor, CSO Valuations, violated antitrust laws and that De Beers and its diamond brokers conspired to control sightholders’ business practices. It was, W.B. David contended, an “unlawful vertical restraint, and that W.B. David incurred damages by purchasing rough diamonds from [the Diamond Trading Co.] at artificially inflated prices.”

In her ruling issued Monday, Wood stated that the sight claim does not adequately allege a conspiracy resulting in an unreasonable restraint on trade nor does it prove the sightholder system was a monopoly.

“Even assuming defendant possessed monopoly power in the relevant market, the sight claim does not allege that defendant’s sight system was anticompetitive,” court papers state. “No assertion is made, for instance, that the sight system excluded potential competitors or impaired the opportunities of rival firms.”

The judge said the factors W.B. David said made the sight system harmful to competition--the fact that only certain companies were selected as sightholders, rough diamonds were pre-selected and sightholders were forced to take their boxes and communicate through brokers--do not suggest exclusionary or anticompetitive conduct.

“As a general rule, businesses are free to choose the parties with whom they will deal, as well as the prices, terms and conditions of that dealing,” the ruling states.

In May 2008, De Beers reached a $295 million settlement in the huge antitrust case brought against it here by diamond purchasers, including retailers, wholesalers and consumers.

Purchasers accused the diamond giant of monopolizing supply and conspiring to fix prices. De Beers admitted no fault in the settlement, and the closure of the antitrust case opened the door for De Beers to operate openly in the U.S. market.

Due to numerous appeals, payouts in the case were still continuing as of last year.